Joe Whalen enquires:
> BTW, doesn't "regulate" suggest that someone's
> "right" shall be infringed?
No, actually it doesn't. Regulate in this context meant (and so still means) "consistent", and the specific use of it was modeled after militia call-up laws that specified how many bullets, how much dry powder, which weapons, etc., that a citizen who qualified as militia was required to bring with them if they were called to organized service. Here's the complete modern reading of the prefatory clause, based upon the English in use at the time of its writing:
"A" -- "a"
"well regulated" -- consistently armed and prepared
"Militia" -- armed male citizens of ages appropriate to armed combat (not army, not national guard, not organized in any fashion. Just armed citizens.)
"being necessary to the security" -- required to keep and maintain
"of a free State" -- either (a), the state of freedom as regards citizens (this interpretation is well supported by the generally citizen-centric nature of the other amendments) or (b) A political
state that holds freedom (often used interchangeably with the word "liberty" at the time) as a core principle. Personally, I favor the former rather than the latter reading, because the constitution consistently talks of "the nation" and "the states", not the nation as
The reason that the prefatory clause is ignored when correctly parsing the second amendment is because it is not an instruction; it doesn't' say "do this", and it doesn't say "don't do that."
This is 100% similar to the constitution's prefatory clause (major preamble); it's informative to any reader, but not instructive to the designated entity which it is authorizing.
The operative clause of the 2nd is, on the other hand, quite specific in its instructional content, and so this is where we look for the behavior required of the government as a constitutionally authorized organization acting on behalf of a consenting body of citizens.
Congresspeople, senators, judges and the elected members of the executive take an oath
that they will obey and defend the constitution. So the operative clause is very important, in that it contains the instructions that define the relevant oath-compliant behavior. The prefatory clause does not.
> Major Pain, an eloquent poster on most issues and
> perhaps a fine lawyer somewhere
> who has me at a
> disadvantage since I don't know the poster behind
> the clever name
Really? Explain the disadvantage and perhaps I'll provide my name.
Personally, I don't think my name, handle, or nickname has any bearing on the validity or basis in reason with regard to my opinions, which, I hope, can either stand or fall on their own, regardless of the fact that they are mine. But feel free to explain, I'm not inflexible.
> is not an absolutist either. The
> rights that "shall not be infringed" end at the
> possession of weapons-grade plutonium, biological
> or chemical weapons even though he acknowledges that
> "the right to bear arms" is not limited to pistols,
> shotguns and rifles.
Absolutely not. -10 points for failure to parse.
Constitutionally speaking, the citizens do
have the right to keep and bear these arms, and any other you care to bring to the table.
My position is that we should have already, and at the very least as soon as possible, tried to arrange for amendment of the constitution so that an amended version of the 2nd disallows these weapons (I select these because they are extremely difficult to aim... I have both a moral and an ethical problem with a weapon you can't ensure will hit the target, and nothing but the target.... the list doesn't end with those three, they're just strong examples.) Others may disagree; that's a perfect example of why it is absolutely appropriate that the amendment mechanism to affect the rule is a democratic process built in by the authors, and not a matter of my (or anyone else's) opinion.
The fact that I don't like the idea that you have the right to own a nuke doesn't mean that you don't have the right. I endorse an attempt the constitutional process that would legitimately
remove that right. ASAP. Doesn't mean I'll get such a process, or that the process will go my way, either. However, without it, you do
have the constitutionally authorized right to own those things. Which again is not to say that the government will comply with its limits; power is not a synonym for authorization. In our form of government, governmental power supposed to be a consequence of authorization; but that, unfortunately, is not the present case.
Speaking personally, I think the fact that the government has skipped attempting the amendment process and just thrown illegal legislation into the hat instead is one of the most damning indictments of our elected officials one could possible cite.
> There is an individual right to bear arms, but it
> is subject to common-sense regulation just like most
> of our rights are subject to common-sense regulation.
This is disingenuous. The actual fact, constitutionally speaking, is that most of our rights are not
subject to "common sense regulation"; what we have is arbitrary and unauthorized regulation in the form of violent coercion by constitutionally unauthorized government exercise of power.
What Obama is indirectly referring to here is the (wrong) idea that judges have the constitutional authorization to amend the constitution. In fact, they do not (though this is emphatically not to be confused with the power
to do so, which is something else entirely.) Article V (amendment) delegates no such authority; Article III, which specifically authorizes powers to the judiciary, allows them to decides constitutional issues - not
This means that they can look at a law that, for instance, says "you can't own guns", and then look at the constitutional law, and say, no, this doesn't pass muster. It does not
mean they can suddenly say, "sure, you can say that, because we've decided that "shall not be infringed" means "sure, infringe if you find it convenient." This is just like a lower court judge that when faced with a law that says "you can't steal someone's car", suddenly says it means you can. Judges cannot make law. SCOTUS is no exception; they have no such authorization.
> I'd encourage you to spend a summer night near E.
> 14th St. in Oakland, Hunter's Point or the Lower
> Mission District in S.F., or the Overfelt neighborhood
> in E. San Jose. The gunfire in the projects will
> keep you awake and a trip to the trauma centers will
> break your heart.
This is an enormously strong argument for amendment. It is not an argument for disregarding the constitution. If you are serious, and I presume you are, then this is where you should direct your energy. By all means do so.
There are other arguments. One is that the citizens should keep enough power so that they can form a credible threat to the government if it gets out of hand (one such example some people would suggest might be when it disregards its constituting authority.) Another is that preemptively presuming that ownership of a dangerous device means that device will be used dangerously is assumption of guilt before demonstration of any criminal intent or activity. There are plenty of perfectly legitimate laws about the use
of arms that can address the gunfire in the projects; one wonders why, in fact, these areas are not more strongly policed and those laws enforced -- they're obviously in dire need of same. A social issue truly unrelated to gun ownership. Who wants to pay for the protection of the poor, when they cannot do so themselves?
Those arguments may not stand against the welfare of the people in the projects. But the only legitimate way to put those arguments into play in a legal sense is as propose